Getting it Wrong on ‘Preponderance’

Over at Minding the Campus, Brooklyn College Professor KC Johnson highlights a shocking c-ville (Charlottesville, Va.) interview with Wendy Murphy, discredited media pundit and adjunct professor of law at New England Law. Johnson takes issue with the interviewer’s dereliction of duty, failing to note Murphy’s history of "repeatedly [making] false statements of fact about the [Duke lacrosse] case … coupled with myriad unsubstantiated claims and bizarre interpretations of law" with respect to the Duke lacrosse scandal in which Duke lacrosse players were falsely accused of rape and later exonerated.

Johnson also highlights this shockingly incorrect statement of law by Murphy, commenting on the April 4, 2011 "Dear Colleague Letter" and the "preponderance of the evidence" standard of proof:

[In one case, d]espite finding [an accuser’s testimony] "credible and compelling," a panel ruled in favor of the accused, said Murphy. And that’s a problem.

"The preponderance standard is simple," Murphy said. "When [an accuser’s] accusations are deemed credible, and [a defendant’s] denials are not described with the same glowing terminology, [the accuser] wins."

As Johnson notes, Murphy is essentially arguing that "a failure to convict amounts to an OCR violation." Johnson writes that "[f]or the OCR even to consider [Murphy’s] absurd claim would be highly problematic."

Two further comments on why Murphy’s statement is legal error: First, looking at the context available from the underlying news item, it’s possible that the statements to which Murphy refers are intended to protect the feelings of the accuser while nevertheless stating that she has not sufficiently proved her case. Such statements are not legally binding, and it is absurd for Murphy to suggest that they are or should be. Further, it would open up a huge liability for universities if Murphy’s reading were to be accepted. College lawyers would forbid administrators even to say "we understand where you’re coming from" for fear that such a statement would bind their decision-making. This would hardly be a positive outcome for accusers.

Second, Murphy glosses over an important distinction between the credibility of accusations and the preponderance standard itself. The preponderance of the evidence standard recently mandated by the Department of Education for sexual assault proceedings on college campuses is already low—indeed, FIRE believes it is too low. Yet even if an allegation is deemed "credible" enough to proceed to a hearing, it will not inexorably lead to a guilty finding for sexual assault if the total weight of the evidence is nevertheless in favor of the accused. The University of Virginia Sexual Misconduct Policy, for example, requires the hearing panel to convict only when, by a unanimous vote, the panel "concludes that … Sexual Misconduct more likely than not occurred based upon careful review of all information presented." In other words, a guilty finding requires scrutinizing more than just credible allegations from the accuser, but weighing "all information presented."

Indeed, this is why college disciplinary hearings generally separate investigation and hearings into two discrete phases, sometimes with two separate standards of evidence. For example, the Harassment and Sexual Misconduct Policy at Hamilton College notes that:

In all complaints, each party has the right … to a timely investigation (typically within two weeks) and appropriate resolution of all complaints of harassment and sexual misconduct deemed credible by the Chair and appropriate Senior Staff member and made in good faith to College administrators.

As another example, Georgetown University’s College Sexual Misconduct Policy notes that the accuser and accused both have "[t]he right to investigation and appropriate resolution of all credible complaints of sexual misconduct made in good faith to college administrators."

In both situations, "credibility" is the standard for determining when to investigate allegations of sexual misconduct, not when to find the accused guilty. If there were no difference between investigating and finding guilt, the Georgetown policy, for example, would provide "the right to investigation and conviction for each credible complaint of sexual misconduct." That would be a scary, and probably illegal, policy.

Murphy’s characterization of the preponderance standard would actually take us below the "50.01%" standard of proof and move us firmly into "guilty until proven innocent" territory. This is dangerous, and, thankfully, not what OCR is asking for.